Commenting on Global Politics, items of concern to Marcus Aurelius, and everything in between!

Thursday, March 17, 2005

Scalia and The Courts.

Justice Scalia recently made some statements about the recent ruling on the execution of those who committed their crimes while being a minor. What troubles him is more and more the "personal policy preferences" of justices are starting to come out instead of what is in our constitution and laws.

He asked a question. The question was if something was unconstitutional then can it now be considered constitutional? Of course the answer is (providing no amendments have made it so) no. He then flips the question if a law or practice is constitutional at the time of the constitution's drafting and adoption (again mind you those items affected by amendments do not count) how can it then be unconstitutional now? Some of his critics say he reads the constitution like a fundy reads the Bible and the critics typically point to a "living and breathing philosophy".

The living and breathing document is a dangerous philosophy. The reason why this is so because it essentially rests on the "personal policy preferences" of those nine unelected men and women. This is why we are having a battle royale in the Senate over the President's nominees. The fight is not about separation of powers, what a load. The fight is the Democrats trying to hold onto the one last branch that is sympathetic to them. Policy preferences are to be decided by our legislatures not judges.

Some people may say but the constitution was written over 200 years ago how can it apply to situations the founders could not have imagined? Simple, there are two ways. Legislatively and by amendments. The problem is amendments are not easy to get through, the founders understood the danger of a people swept up in a fickle mood. The constitution can change by amendment it is not easy but it has been done. An interesting example of constitutional change are the 18th and the 21st amendments. The 18th was prohibition the 19th granted the right to vote to women the 20th spells out the ending and starting dates of federal elected officials, and the 21st amendment repeals the 18th amendment (ending prohibition). So it is possible to amend the constitution.

The second and easier route for changing laws that are not liked is by simple legislative activity. For example, without Roe V Wade my guess is probably most states if not all states would allow abortions.

The problem is for many on the left they know (or come to know) their ideas to be unpopular and find it easier to persuade one, five or nine judges than an entire legislature and people. So they work to keep the judicial branch as their own. This is why there is such a battle for circuit and appeals court nominees. They want justices who look to world opinion to base their rulings on and not our constitution.